Prescott v. Kramer Chemicals, Inc.

12 A.D.3d 585, 784 N.Y.S.2d 393, 2004 N.Y. App. Div. LEXIS 14241

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff and the third-party defendant separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Clemente, J), dated April 12, 2002, as denied their respective motions to dismiss the complaint.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the appellants’ contentions, they failed to demonstrate that the plaintiffs’ failure to timely comply with various discovery requests and court orders was willful and contumacious. Accordingly, the Supreme Court providently exercised its discretion in refusing to dismiss the complaint for any failure to timely comply with the appellants’ discovery requests and the discovery directed to be provided by the preliminary conference order (see Gorokhova v Belulovich, 267 AD2d 202 [1999]; Ploski v Riverwood Owners Corp., 255 AD2d 24, 28 [1999]).

The appellants’ remaining contentions either are without merit or need not be reached in light of the foregoing. Smith, J.P., Luciano, Rivera and Lifson, JJ., concur.